United States v. Maldonado-Passage

56 F.4th 830

UNITED STATES of America, Plaintiff - Appellee,

v.Joseph MALDONADO-PASSAGE, a/k/a Joseph Allen Maldonado, a/k/a Joseph Allen Schreibvogel, a/k/a Joe Exotic, Defendant - Appellant.

No. 22-6025

United States Court of Appeals, Tenth Circuit.

FILED December 23, 2022

Molly Hiland Parmer, Parmer Law, Atlanta, Georgia, for Defendant – Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff – Appellee.

Before McHUGH, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

In 2018, Joseph "Tiger King" Maldonado-Passage was indicted on several counts, including two murder-for-hire schemes in violation of 18 U.S.C. § 1958(a). A jury convicted Maldonado-Passage on all counts presented and the district court sentenced him to a 264-month term of imprisonment. The sentence incorporated consecutively run 108-month terms for each § 1958(a) conviction. He appealed to this court, claiming, inter alia , his murder-for-hire counts should be grouped for purposes of calculating his total offense level. This court affirmed Maldonado-Passage's murder-for-hire convictions, but held his § 1958(a) offenses shared a "common criminal objective" and should be grouped under § 3D1.2(b) of the United States Sentencing Guidelines. United States v. Maldonado-Passage (Maldonado-Passage I ), 4 F.4th 1097, 1099, 1104–08 (10th Cir. 2021). We remanded the matter to the district court for resentencing. Id. at 1108 ("For the foregoing reasons, we affirm Maldonado-Passage's conviction[s] but vacate the sentence and remand for resentencing.").

On remand, Maldonado-Passage filed a motion to reconsider the denial of a pretrial motion to dismiss one of the two § 1958(a) counts as multiplicitous. He proposed his counts be merged and subject to a single penalty. In its denial of the motion, the district court concluded Maldonado-Passage failed to demonstrate adequate grounds for reconsideration. Furthermore, during resentencing, the district court announced it would not exercise its discretion to expand the scope of sentencing beyond the grouping error identified by this court in Maldonado-Passage I . The district court revised Maldonado-Passages’ total offense level and advisory Guidelines sentencing range and accordingly imposed a reduced sentence of 252 months’ imprisonment. This sentence included two consecutively run 102-month terms for each murder-for-hire conviction.

Maldonado-Passage brings this appeal claiming the text of § 1958(a) prohibits his conduct from being parsed into two offenses with consecutively run sentences. This court disagrees. As a threshold matter, the district court did not abuse its discretion by limiting its sentencing scope and refusing to reconsider Maldonado-Passage's previously denied motion to dismiss for multiplicity. Therefore, no vehicle to challenge the § 1958(a) components of his sentence as multiplicitous remains. Nonetheless, this court also confirms § 1958(a) ’s "plot centric" unit of prosecution permits separate offenses and consecutive sentences when, as here, two unrelated hitmen are hired to kill the same person. See United States v. Gordon , 875 F.3d 26, 35 (1st Cir. 2017). Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms the district court's sentencing decision.

II. BACKGROUND

Maldonado-Passage's murder-for-hire attempts were born from a bitter feud with activist Carole Baskin over his treatment of animals at the zoo he operated in Wynnewood, Oklahoma. The pair's colorful rivalry featured famously in Netflix's 2020 documentary series, Tiger King: Murder, Mayhem, and Madness . The impetus of Maldonado-Passage and Baskin's enmity is detailed by this court's prior decision in Maldonado-Passage I and need not be recapitulated in full. See Maldonado-Passage I , 4 F.4th at 1099–1100.

Most relevant to this appeal is the posture of Maldonado-Passage's § 1958(a) convictions. The first count of the indictment describes Maldonado-Passage's arrangements with zoo employee Alan Glover. Throughout November 2017, Maldonado-Passage solicited Glover to kill Baskin; organized Glover's interstate travel to obtain a fake identification card; provided Glover with a new phone preloaded with pictures of Baskin; and forwarded approximately $3000 to Glover for his travel to Florida to murder Baskin. Id . at 1100. At the end of November, Glover traveled from Oklahoma to Florida, but did not contact or attempt to kill Baskin. Id . Maldonado-Passage's second § 1958(a) count articulates his agreement with an undercover FBI agent, "Mark," to kill Baskin. Id . Introduced by a friend who was cooperating with an ongoing federal investigation, Maldonado-Passage and Mark engaged in several phone conversations from December 2017 to March 2018 regarding Baskin's murder. Maldonado-Passage ultimately offered to pay Mark $10,000 in two installments for Baskin's murder.

Prior to his initial trial, Maldonado-Passage filed a motion to dismiss one of the two § 1958(a) counts for multiplicity. He argued the two counts covered "the same criminal behavior" and could not be distinguished. Further, he characterized the unit of prosecution under § 1958(a) as "a single plot to murder a single individual." See Gordon , 875 F.3d at 28. Maldonado-Passage described his arrangements with Glover and Mark as one cohesive plot to murder Baskin which could not be separated as a matter of statutory interpretation. The district court denied Maldonado-Passage's motion, concluding his § 1958(a) convictions were entirely distinct. According to the district court, the presence of a shared victim did "not alter the alleged plots’ individual natures." After conviction, Maldonado-Passage was sentenced to two consecutive 108-month terms for each murder-for-hire count.

Maldonado-Passage did not challenge on appeal the district court's conclusion that the indictment set out two, distinct crimes. He did, however, claim that the district court erred in failing to group the two murder-for-hire convictions for purposes of calculating his total offense level. Maldonado-Passage I , 4 F.4th at 1103. We affirmed Maldonado-Passage's murder-for-hire convictions against a challenge to the district court's refusal to sequester a witness, but held that the district court erred when it failed to group the convictions pursuant to § 3D1.2(b) of the Guidelines. Id . at 1099. This court concluded the two schemes involved " ‘substantially the same harm’ " because they were "connected by a ‘common criminal objective’ " and charged in "closely related counts." Id . at 1104 (quoting U.S.S.G. § 3D1.2(b) ). Our interpretation of the Guidelines emphasized that the ends, rather than the means, of a planned murder dictate whether more than one act should be grouped under a common criminal objective. Id . at 1105–06. Relying on United States v. Norman , 951 F.2d 1182 (10th Cir. 1991), this court determined the shared goal between the two counts required grouping for sentencing determination. Maldonado-Passage I , 4 F.4th at 1106. Accordingly, the case was remanded for resentencing under a lowered total offense level. Id . at 1108.

On remand, Maldonado-Passage filed a motion to reconsider the denial of his pretrial motion to dismiss one of the two murder-for-hire counts as multiplicitous. He offered the grouping decision in Maldonado-Passage I as support for his argument that the two convictions should be merged and subject to a single penalty. The district court rejected this theory. It first questioned whether timeliness and the mandate of this court allowed for such reconsideration. Even without these initial concerns, the district court determined Maldonado-Passage had not demonstrated a misapprehension of the law or facts required to show adequate grounds for reconsideration. At the subsequent resentencing hearing, the district court treated this court's remand in Maldonado-Passage I as limited to resentencing. The district court, however, declined to expand the scope of sentencing beyond the more limited grouping issue. The district court adopted its prior sentencing findings except for sentencing calculations necessitated by the grouping mandate. Maldonado-Passage was resentenced to 252 months’ imprisonment, 204 of which were evenly divided into consecutive sentences for his § 1958(a) convictions.

III. ANALYSIS

This appeal offers two procedural and two substantive issues for review. Procedurally, the case requires analysis of the district court's denial of Maldonado-Passage's motion to reconsider and its limitation of resentencing to align with this court's mandate in Maldonado-Passage I . Substantively, Maldonado-Passage argues his § 1958(a) sentences are based on multiplicitous convictions and those convictions should be merged into one. He also argues the district court's decision to run his murder-for-hire sentences consecutively is unreasonable. We conclude the district court did not abuse its discretion on either procedural issue and, therefore, properly did not address anew the substantive issue of multiplicity. Even if Maldonado-Passage were to prevail on these procedural issues, however, his arguments regarding multiplicity and reasonableness would still fail.

Maldonado-Passage's § 1958(a) convictions are not multiplicitous because they involve distinct plots to kill a single person. Further, the record does not indicate the district court erred in its calculation or imposition of consecutive sentences.

a. RECONSIDERATION

This court reviews denials of motions to reconsider for abuse of discretion. See United States v. Warren , 22 F.4th 917, 927 (10th Cir. 2022). Abuse of discretion requires "arbitrary, capricious, whimsical or manifestly unreasonable judgment." Mid-Continent Cas. Co. v. Vill. at Deer Creek Homeowners Ass'n, Inc. , 685 F.3d 977, 981 (10th Cir. 2012) (quotation omitted). Grounds for...